The Trump administration just shot its legal case against congestion pricing in the foot.
Attorneys for the Federal Highway Administration late yesterday mistakenly filed an internal memo that bluntly concedes that the agency’s case is weak and “very unlikely” to win. The 11-page document, filed into the New York federal court record as part of the MTA’s lawsuit challenging a federal order to kill the toll, also revealed another potential legal strategy for the agency to pursue.
Assistant U.S. Attorneys Dominika Tarczynska, David Farber and Christine Poscablo admit in the memo, dated April 11, that they “have been unable to identify a compelling legal argument” to support U.S. Transportation Secretary Sean Duffy’s claim that the toll violates federal law because it does not provide a toll-free option and that the program’s fees have been improperly set to raise revenue for the MTA over reducing congestion. The attorneys explain in their memo that existing case law contradicts Duffy’s claims and “undercuts” the federal government’s case.
“It appears that other than the Secretary’s decision itself, there is no other material supporting or explaining the DOT’s change of position,” the attorneys wrote. “It is unlikely that Judge [Lewis] Liman or further courts of review will accept the argument that [congestion pricing] was not a statutorily authorized [program].”
In fact, the attorneys warn that the “thin administrative record” will likely lead the MTA to request that U.S. DOT produce additional emails and depositions from agency officials, including Duffy, to shed light on the reasoning behind the agency’s sudden order to shut down the toll. Such disclosures could be especially damaging to the federal government’s case, the letter notes, because there is “very little written justification” for the agency order.
The federal government filed a memo Thursday morning requesting that Judge Liman remove or permanently seal the “inadvertently filed” document from the court record because it is an attorney-client privileged communication. As of Thursday midday, the memo is no longer listed in the online court record.
Michael Gerrard, an environmental lawyer and founder of Columbia University’s Sabin Center for Climate Change Law, described the mistaken upload of the frank memo as “a classic bonehead move.”
“A lawyer would get in a lot of trouble for this,” Gerrard said in an interview. “It surprised me that they put in writing how weak their theories are. Posting a confidential strategy document on the court docket is like including a magazine editor in your Signal chat.”
The trio of U.S. Department of Justice attorneys also argued that the Trump administration should instead make the case that existing law allows the federal government to simply end its agreement to greenlight the toll because congestion pricing no longer fits with his agency’s priorities. But there’s also a snag with that approach, say the attorneys, because such federal agreements do not have “any explicit termination provisions, which may make this argument more difficult.”
Gerrard described the strategy as “shaky” and said it would very likely elicit additional lawsuits from New York and others that would drag on for months.
In the meantime, Gov. Kathy Hochul’s administration filed paperwork asking federal Judge Lewis Liman, who is overseeing the MTA’s lawsuit, to block the Trump administration from taking any retaliatory action to withhold federal funds and approvals for New York projects while the case works its way through court. The lawsuit isn’t expected to be resolved until at least the fall.
